Wagnon v. Fairbanks

105 Ala. 527

• Court: Supreme Court of Alabama
• Decided: November 15, 1894
• Status: Published

Opinion

HARALSON, J.

Under the facts of this case, it is not pretended that the defendant ever had the legal title to the eighty acres of land in question. His only claim of right is under a parol agreement with Marvel C. Brown, who entered the land from the Government, the appellant having furnished him the money for that purpose, and in consideration therefor, allowed plaintiff to take this eighty acres, the same being one-half of the one hundred and sixty which was entered by Brown. This was in 1886, before Brown had acquired a patent to the land, and while the legal title was yet in the Government. Brown did not acquire his patent until June, 1891. Previously, on the 20th March, 1888, he had mortgaged the land to the plaintiff, to secure a debt for borrowed money, which mortgage contained a warranty of title. The plaintiff claims title under this mortgage, and the after acquired patent of defendant from the Government, and under it in this action, as against any claim of right of the defendant brought to view, plaintiff is entitled to recover.

The Government continued to be the owner of the legal title to this land, until the patent issued to Brown in 1891. The defendant claims title by adverse possession for ten years before suit brought. Sucha claim never runs against the Government to defeat its title, no matter how distinct and hostile it may be.—1 Brick. Dig. 49, § 1,0; Iverson v. Dubose, 27 Ala. 418. He who enters upon the public domain and occupies and claims title, without the license of the Government, by patent or otherwise, is a mere trespasser.

The judgment must be affirmed.